Amazon's Kindle 2 vs. The Author's Guild

As many of you are probably aware, Amazon recently released an update to its popular e-book reader the Kindle called appropriately Kindle 2. One of the interesting new features included with the Kindle 2 is a text to speech option that allows the reader to read the book aloud. Unfortunately, the Authors Guild immediately decried this feature as a violation of author's and publisher's copyrights. What I find more disheartening was that it was reported yesterday that Amazon is apparently going to cave, despite what I think is a very strong legal position, and include some kind of an opt in option so that authors can offer their books on the Kindle 2 with text to speech disabled if they so choose.

First the legal issues involved. From what I can gather the Author's guild's argument is that the text to speech feature creats an unauthorized derivative work of the copyrighted book. So does a parent create an unauthorized derivative work when they read a book aloud to their child? There is no derivative work created in either instance because a derivative work, like any copyrightable work, must be fixed in a tangible medium of expression. There is no fixation when a book is read aloud obviously. The only argument I can think of in the Author's Guild's favor is that there is fixation when the book is held in the Kindle's memory. Some Court's have ruled RAM to be enough to created fixation but others have not. Hopefully the Supreme Court will settle this but this Kindle situation illustrates the dangers of holding computer memory as able to fix a copyrighted work.

The only other right of the Authors I can see this situation involving is the Right of Public Performance. I think this contention would be obviously defeated by the fact that there is obviously no public performance if a person has the Kindle 2 read the book to them in the car or anywhere else not public. If someone assembled an auditorium and then put the kindle on loud speaker to read the book to everyone then there may be a public performance issue. But to disable the feature because of this possibility is overkill in my opinion.

This situation is a striking example of the dangers of expanding copyright rights. I am very dissapointed to see Amazon simply give in to this unmeritorious claim. This creates a precedence in which other copyright owners will likewise assert rights that they don't have which hurts all of us when interesting, useful, and sometimes necessary features of a product are disabled or never even introduced for fear of trampling on expansive copyrights. Amazon, it is not too late, if you want someone to defend you I am more than willing to take the case!

Categories: Copyright

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